Show, Don't Tell

Do photographs of California's overcrowded prisons belong in a Supreme Court decision about those prisons?

California's prisons are so overcrowded, the Supreme Court ruled today, that they are a violation of the Constitution's ban on cruel and unusual punishment. Writing for the majority in Brown v. Plata, Justice Anthony Kennedy spent 48 pages carefully explaining why the state must release or relocate some 32,000 inmates over the next two years. Then, to drive home his argument, Kennedy attached three grainy black-and-white photographs to the opinion. Whether those photos will change anyone's mind about the morality of prison overcrowding is open to debate. Whether they should may be the more important, and more interesting, question.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The consolidated appeal comprised two class-action suits, one of which dates to 1990 and challenges prison conditions for prisoners with serious mental health problems. The second was filed on behalf of prisoners with serious medical needs. Almost 15 years ago, the courts found these conditions to be unacceptable. In 2005, a federal court determined that "on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system." But conditions continued to deteriorate, and in 2009 a three-judge panel ordered California to reduce its prison population to 137.5 percent of the prisons' design capacity within two years. (The system was designed to hold just under 80,000 prisoners, but at the time of the oral argument, it had more than 142,000, and Kennedy notes that since then the state has transferred about 9,000 inmates to county jails.) The state appealed, arguing among other points that it hadn't enough time to remedy the problems.

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In the court's 5-4 decision, Kennedy piles up damning evidence of Eighth Amendment violations. "Prisoners are crammed into spaces neither designed nor intended to house inmates," he writes. "As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. … As many as 54 prisoners may share a single toilet." In 2006, he notes, the suicide rate in the prisons approached one per week. Because the facilities lacked treatment beds, suicidal inmates were "held for prolonged periods in telephone-booth sized cages without toilets." Kennedy explains that "a psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had 'no place to put him.' " Prisoners with treatable illnesses died awaiting basic care. "In one facility," Kennedy writes, "staff operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers."

Upon reviewing this massive record of abuse and malpractice he likens to "torture or lingering death," Kennedy concludes: "The medical and mental health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. … The State shall implement the order without further delay."

To emphasize this point, Kennedy appends to the opinion three black-and-white photographs of the prison conditions he has just described. This includes an image of the locker-like dry cages for inmates awaiting a mental health crisis bed at the Salinas Valley State Prison. The image of those cages is horrifying, and will doubtless move those who agree with Kennedy, the ACLU, and other prison reformers to believe that the California system is sinfully inadequate. But should the court be using visual aids to prompt emotional responses or be inviting citizen fact-finding in the first place?

Photos from California's overcrowded prison system

This is not a new phenomenon. According to Hampton Dellinger in a prescient 1997 law review article on the subject, "seminal decisions have employed attachments, ranging from the purportedly 'bizarre' outline of North Carolina's congressional districts appended to the majority's opinion in Shaw v. Reno, to the seven pages of photographs accompanying Chief Justice Warren's concurrence in the first major challenge to the televising of trials, to the allegedly libelous newspaper advertisement affixed to the opinion of the court in New York Times Co. v. Sullivan." Dellinger's conclusion is that these materials contribute very little, and in fact damage the credibility of the court.

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The most recent audio-visual footnote to a court opinion came with Justice Antonin Scalia's majority opinion in Scott v. Harris, the famous 2007 police-chase case, caught on videotape from inside a police cruiser. In Harris the court ruled, 8-1, that a police officer did not violate the Fourth Amendment's ban on unreasonable search and seizure when he deliberately smashed his car into that of a fleeing driver who refused to stop, rendering the driver a quadriplegic as a result. The video changed everything, and the court admitted it. At oral argument, Scalia, referring to the video, said the fleeing driver "created the scariest chase I ever saw since The French Connection." Justice Stephen Breyer, at the same argument, admitted to the plaintiff's lawyer, "I was with you when I read … the opinion of the court below. … Then I look at that tape and that tape shows he is weaving on both sides of the lane, swerving around automobiles that are coming in the opposite direction with their lights on. … Am I supposed to pretend I haven't seen that?"

Scalia uploaded the video along with the opinion, inviting America to have a look. "We are happy to allow the videotape to speak for itself," he wrote. In a lone dissent, Justice John Paul Stevens argued that the video didn't prove what the majority claimed and that the issue should have gone to a jury instead of "being decided by a group of elderly appellate judges."

The court's reliance on the video in Harris prompted some fascinating scholarship on the role of such videos in Supreme Court decision-making, including a study published in 2009 in the Harvard Law Review arguing that viewers reach vastly different conclusions upon viewing the high-speed chase in Harris. Values, cultural biases, income, and other factors shape viewers' opinion of the court's conclusion that the police chase was inherently "reasonable." The authors conclude that inviting readers to view the tape on the court's website and "trust their own eyes" was "hubris" and a mistake on the part of the court.

Hampton Dellinger similarly urges that photographic attachments, which may appear neutral and objective, can be manipulated to produce a desired emotional response. And Jessica Silbey at Suffolk University Law School, who has called for a more coherent rule of film evidence in jury trials, highlights the "opposite tendencies of film and law, the former being to entertain, provoke, or please, and the latter being to reason and judge based on facts and not on emotion."

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Of course, there is something strange about a court that is seemingly allergic to film and cameras covering its own work embracing photographic images to convince readers of a legal argument. Good grief, justices. If cameras have a place in a legal opinion, they surely have a place in the courtroom as well. The court can't reasonably take the position that photos and video are essential to its own work, while still barring photos and videos from the building.

To what end did Kennedy attach those California prison photos? To make us angry? To justify his own strong response? To answer the pervasive criticism that the justices do not inhabit the real world? What if he miscalculated? Might viewers looking at images of huge tattooed men crowded into small spaces not react with terror that these men are about to be released back into their communities?

The images of the prison cages in today's opinion add little to the discussion about the propriety of the lower court's release order or the sweep of the Eighth Amendment. At least in this instance, Kennedy's words alone would have been enough. Indeed the majority's reliance on the cruel mistreatment of the prisoners seems only to have incensed Scalia, who fulminates in his dissent that "today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation's history."

Scalia in fact uses words like absurd and travesty before painting a word picture that is as vivid as it is chilling: "The vast majority of inmates most generously rewarded by the release order … will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."